H L KAKA Vs. KANHAYYALAL

JUDGEMENT

(1.) This revision petition is directed against the order of the VI Assistant Judge, Hyderabad, in I.A. No. 787 of 1978 filed by the first defendant whereby under section 153, Civil Procedure Code, he recalled the earlier order of allowing the amendment on the ground that there was a mistaken apprehension of the scope of the order passed by the Additional Judge, City Civil Court, Hyderabad, in appeal arising out of I.A. No. 81 of 1977.

(2.) Facts necessary for the disposal of this revision petition briefly stated are these: The first plaintiff and 7th defendant have purchased houses bearing Municipal Nos..21-3-519, 21-3-540 and 21-3-677 situated at Chelapur Chowedi Suleman Jah Penchi. buraq, Hyderabad, under a registered sale deed dated 31st January, 1955. The first defendant was inducted into possession as tenant in respect of portion of the house bearing No. 21-3-519 on a monthly rent of Rs. 325 Subsequently he obtained possession of house No.21 3 677 on payment of monthly rent of Rs. 60. The other portions in the other houses remained in the occupation of other tenants of the plaintiff and 7th defendant. The first defendant was asked by the plaintiff to collect rents from the other tenants and remit the some to him along with the rent payable by him. The first defendant accordingly collected rent and was paying to the plaintiff. But since 21/2 years he started avoiding payment of rent to the plaintiff The 7th defendant being pre-occupied with his business at Bombay has left the entire management of the suit houses in the hands of the plaintiff. The plaintiff having been laid up with paralysis for a long time was only managing the suit houses through his agent that is his brother-in-law. Taking advantage of the situation the fitst defendant unauthorisedly sub-let some of the portions of the suit houses to the defendants 3 to 6. Therefore a notice was issued on 25th April, 1973 to the first defendant demanding payment of arrears of rent, terminating his tenancy and requiring him to deliver vacant possession of the suit property. He sent a contemptuous reply alleging that he entered into an agreement with the plaintiff to purchase the suit house and that he already paid a sum of Rs 3,000 on 15th July, 1956 and a further sum of Rs. 4,000 on 13th December, 1971 to the plaintiff and the 7th defendant as earnest money As these allegations were false, the plaintiff had filed the suit to recover possession of the suit properties from the first and other defendants. He valued the suit in respect of the relief against the first defendant under section 40 (2) of the Andhra Pradesh Court-Fees Act treating him as his tenant.

(3.) The first defendant resisted the suit inter alia on the ground that he took possession of all the three houses on a consolidated rent of Rs. 60 per month and that subsequently he entered into an agreement to purchase the same from the plaintiff and the 7th defendant or a total consideration of Rs. 12,000 which he paid in three instalments and that in part performance of the agreement he was put in possession of the suit houses by the plaintiff and the 7th defendant. He thus claimed to be the absolute owner of the properties. He also contended that he perfected his title to the suit property by adverse possession. According to him the suit ought to have been valued under sections 24 and 26 of the Andhra Pradesh Court-Fees and Suits Valuation Act. On the said pleadings a number of issues have been framed of which Issue No. 4 relates to the question whether the suit was properly valued and whether the court-fee paid was sufficient. The suit was thereafter posted for trial Meanwhile I. A No. 398 of 975 was filed to implead the second plaintiff as a purchaser of the suit properties from the first plaintiff and 7th defendant. That application was allowed on 19th April. 1975. I.A. No. 397 of 1975 was filed for examining the then sole plaintiff on commission and that application was also allowed and the commissioner appointed by the Court examined the plaintiff on 18th August, 1975 at Varanasi. On 31st October, 1975, two additional issues were framed. Additional Issue No 2 relates to the question- Whether the Court has pecuniary jurisdiction to entertain the suit. That issue was taken up as a preliminary issue. Urder the said issue the lower Court directed the plaintiff to value the reliefs under sections 24 and 26 of the Court-Fees Act and for that purpose returned the plaint to him. The plaintiff instead of complying with the said order filed I. A. No. 81 of 1977 alleging that as per the order of the Court dated 27th December, 1976, it has become necessary for him to amend the plaint. A plan was also appended to this application. That plan showed the property in possession of the first defendant in red lines.